Constitutional Court

The Court referred ten preliminary questions to the Court of Justice of the European Union (CJEU) as part of the examination of the action for annulment instituted by the « Ligue des droits humains » against the Law that requires the communication of passenger information. The CJEU validated the PNR (« Passenger Name Record ») system, upon which the contested Law is based, as to its principle, under several reservations of interpretation. Following that judgment of the CJEU, the Court holds that it is justified that the PNR system applies to all passengers, but that the processing of PNR data is only possible to fight terrorism and serious crime, related to the carriage in question. The Court validates several contested provisions (creation of the database, pre?screening, period of data retention), under reservations of interpretation. The Court annuls other measures, such as the possibility for the public prosecutor and intelligence and security services to gain access to the data. Pending legislative action, the Data Protection Authority is authorized to grant such access. The Court also annuls the provisions that lay down rules for processing API (« Advanced Passenger Information ») data in a single database with PNR data.

In 2021, A. Assadi, an Iranian diplomat was sentenced in Belgium for a terrorist offence. On 11 March 2022, Belgium and Iran concluded a treaty on the transfer of convicted persons. Ten persons and the « National Council of Iranian Resistance » requested the annulment of the provision assenting to this treaty since it would allow the transfer of A. Assadi to Iran, where he could be liberated immediately. O. Vandecasteele, a Belgian who has been detained in Iran since February 2022 and who has since been sentenced to 40 years in prison and 74 lashes of the whip, is intervening in the proceedings to oppose this request. By its judgment no. 163/2022, the Court partially suspended the contested provision. In the context of the assessment of the substance of the case by judgment no. 36/2023, the Court rejects the action for annulment. It specifies however that in the event of a transfer of a convicted person the Government must proceed with a case by case balancing of the duty of protection with regards to the right to life and the right to human dignity. This balance must be able to be assessed by the Court of first instance. Thus, when the Government takes a decision to transfer, it must inform the victims of the relevant convicted person in such a way that they can effectively seek a review of the legality thereof by the Court of first instance.

In 2021, A. Assadi, an Iranian diplomat, was sentenced in Belgium to 20 years in prison for a terrorist offence. On 11 March 2022, Belgium and Iran concluded a treaty on the transfer of sentenced persons. Ten persons and the “National Council of Resistance of Iran”, who were civil parties in the trial of A. Assadi, are requesting the suspension and annulment of the provision assenting to this treaty, because it would allow the transfer of the convicted diplomat to Iran, where he could be immediately released. O. Vandecasteele, a Belgian detained in Iran since February 2022, intervenes in the proceedings to oppose this request. The Court rules that the challenged provision seems to violate the right to life of the victims insofar as it allows the transfer to Iran of a person convicted in Belgium for having committed a terrorist offence with the support of Iran. In fact, Belgium knows or should know that Iran will not effectively execute the sentence in this case. The Court considers that the immediate application of this provision could cause serious harm difficult to remedy for the ten persons who brought the proceedings before the Court. The Court suspends the challenged provision to the extent specified.

The Belgian Constitutional Court refers ten preliminary questions to the Court of Justice concerning the obligation to transfer passenger information

The Belgian Constitutional Court holds that the federal Gender Recognition Act of 25 June 2017 is unconstitutional on several points. The Act contains a lacuna in so far as the sex registration in the birth certificate is limited to the binary categories of male or female. Based on the principle of self-determination, the federal legislature enables individuals to change the sex registration in their birth certificate in accordance with their inner conviction. From this perspective, it is not reasonably justified that persons with a non-binary gender identity are required to accept a sex registration in their birth certificate based on the male/female classification when this does not correspond to their inner perceived gender identity. However, it falls solely upon the legislature to remedy this unconstitutionality. The Court, in addition, annuls the provisions that render the modification of the sex registration in the birth certificate in principle irrevocable and only allow for a single first name change for transgenders. Despite the fact that through an exceptional procedure before the Family Court one can revert back to the original sex, this cannot be considered justified in light of the objectives pursued as it discriminates persons with a fluid gender identity.

In the case on the Flemish Act introducing a general ban on slaughter without stunning, the Belgian Constitutional Court refers three questions to the Court of Justice of the European Union, before ruling on the substance of the case. The Belgian Constitutional Court is required to bring the matter before the Court of Justice, as there is doubt regarding the interpretation and the validity of the 2009 European regulation on the protection of animals at the time of killing. With respect to the actions for annulment of the Walloon Act, the Belgian Constitutional Court finds that the provision on the general ban on slaughter without stunning has been removed before it has ever taken effect. Therefore, these actions have become without object. The ban is now included in the Walloon Animal Welfare Code.

In the case on the Flemish Act introducing a general ban on slaughter without stunning, the Belgian Constitutional Court refers three questions to the Court of Justice of the European Union, before ruling on the substance of the case. The Belgian Constitutional Court is required to bring the matter before the Court of Justice, as there is doubt regarding the interpretation and the validity of the 2009 European regulation on the protection of animals at the time of killing. With respect to the actions for annulment of the Walloon Act, the Belgian Constitutional Court finds that the provision on the general ban on slaughter without stunning has been removed before it has ever taken effect. Therefore, these actions have become without object. The ban is now included in the Walloon Animal Welfare Code.